Davenport v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-206V
UNPUBLISHED
JOHN DAVENPORT, Chief Special Master Corcoran
Petitioner, Filed: November 8, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling
HUMAN SERVICES, on the Record; Findings of Fact;
Influenza (“Flu”); Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA);
Leigh A. Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
On February 26, 2020, John Davenport (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder
injury related to vaccine administration (“SIRVA”) caused by an influenza (“flu”) vaccine
administered on September 17, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters. For the reasons set forth below, I find
that Petitioner is entitled to compensation.
1 In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
I. Relevant Procedural History
More than a year after the claim’s initiation, Respondent filed a status report stating
that he was willing to engage in settlement discussions, but they did not succeed. On
June 14, 2022, Petitioner was invited to file a motion for a ruling on the record with regard
to entitlement. ECF No. 44. Petitioner filed his motion on October 5, 2022. Motion for
Ruling on the Record (“Mot.”), ECF No. 49. Respondent opposed the motion on
November 10, 2022, arguing that Petitioner had not established a Table claim because
he had a history of left shoulder pain prior to his vaccination, and because his symptoms
could be due to an alternative cause. Respondent’s Response to Petitioner’s Motion for
Ruling on the Record (“Opp.”), ECF No. 51, at 10-11. Petitioner filed a reply on November
17, 2022. Petitioner’s Reply to Respondent’s Response to Motion for a Ruling on the
Record (“Reply”), ECF No. 52. The matter is ripe for resolution.
II. Petitioner’s Medical Records
Petitioner received a flu vaccine in his left shoulder on September 17, 2018. Ex. 1
4. On November 9, 2018 (a little less than two months post-vaccination), Petitioner
reported to Dr. Alberto Ramirez at the Department of Veterans’ Affairs Medical Center
that he was experiencing shoulder pain that “still ache[d]” since his September
vaccination. Ex. 2 at 497. Petitioner again reported comparable left arm pain on
November 14, 2018. Id at 496.
Petitioner returned to Dr. Ramirez on November 15, 2018, with reports of eye and
shoulder pain. Ex. 2 at 487. He reported left arm pain “for over two months” that started
“right after” his flu vaccine. Id. at 488.
Three months after, on February 18, 2019, Petitioner saw Michael Klauder, PA, for
left arm pain. Ex. 3 at 24. He reported “significant pain” since his September 2018 flu
vaccine. An examination showed reduced range of motion, and prednisone was
prescribed. Id. at 25.
Petitioner completed four physical therapy sessions between February 21 and
March 14, 2019. Ex. 4 at 8-24. During the initial assessment, Petitioner reported that the
method of injury was a “flu [] shot on 9/17/18.” Id. at 24. On March 25, 2019, Petitioner
returned to P.A. Klauder for left shoulder pain “since immunization…in September.” Ex.
3 at 22. He reported his pain had returned after temporary relief he attributed to the
prednisone. Id.
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Petitioner was evaluated by orthopedist Dr. Andrew Mahoney on April 1, 2019. Ex.
3 at 44. Petitioner reported that he had a history of shoulder injuries but was better and
had no shoulder pain prior to the flu vaccine. Id. Dr. Mahoney stated, however, that he
was unable to relate Petitioner’s complaints to an anatomic problem, and that his
symptoms “would be more consistent with cervical spine radiculopathy” rather than
shoulder pathology. Id. at 45.
Petitioner returned to P.A. Klauder on April 8, 2019, and was diagnosed with a
SIRVA. Ex. 3 at 20. On April 11, 2019, Petitioner underwent an MRI that showed
tendinosis, moderate degenerative changes to the acromioclavicular joint, and a possible
partial thickness tear of the supraspinatus tendon. Ex. 5 at 4.
On April 25, 2019, Petitioner had a neurologic consultation with Dr. Roderick
Anderson. Ex. 6 at 14. He was assessed with left arm weakness, and an EMG/nerve
conduction study was suggested. Id. at 17.
Petitioner underwent an EMG study on June 12, 2019. Ex. 6 at 20-22. The study
was unremarkable but for mild bilateral carpal tunnel syndrome. Id. at 22. Notably, there
was no “evidence of brachial plexopathy, cervical radiculopathy, or injury to the peripheral
nerves. Id.
On August 19, 2019, Petitioner was evaluated by orthopedist Dr. Robert Kersey.
Ex. 7 at 4. Petitioner reported chronic arm pain and numbness since his September flu
immunization. Id. Dr. Kersey noted that Petitioner’s pain was likely neurologic, and a
corticosteroid injection was administered. Id. at 6.
Petitioner saw P.A. Paul Zahn, an orthopedist, on October 15, 2020. Ex. 11 at 2-
3. Petitioner reported left shoulder pain “since fall in Vietnam,” and also attributed his pain
to a “SIRVA after a flu shot.” Id. He was diagnosed with impingement at that time and
received a second steroid injection.
A second MRI was performed on November 10, 2020. Ex. 14 at 43-44. It showed
a partial thickness tear of the supraspinatus tendon, bursitis, tendinosis. Id. at 44. It was
also noted that Petitioner had “shoulder pathology as well as severe multilevel cervical
NFS on the left. Either of these conditions can explain his symptoms.” Id.
On January 3, 2021, Petitioner had a cervical spine MRI that showed degenerative
changes including stenosis. Ex. 14 at 43. Petitioner was seen for neck pain on April 26,
2021 by Thomas Coury, DO, and was diagnosed with cervical radiculopathy. Ex. 13 at
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65. Petitioner returned to D.O. Coury on May 10, 2021, for neck and left shoulder pain
and underwent trigger point injections. Ex. 13 at 58.
On September 3, 2021, Petitioner saw a pain management specialist. Ex. 14 at
119-20. Petitioner attributed his pain to a SIRVA “after a flu shot” on September 18, 2018.
Id. at 120. A physical examination noted his neck range of motion was “full without
radiculopathy”. Id.
Petitioner had a telemedicine visit with Dr. Marko Bodor on December 20, 2021,
for left shoulder pain “which began 9/17/18 following flu vaccination”. Ex. 15 at 8-9. He
was assessed with a suspected SIRVA and cervicalgia, among other issues. Id. at 9. Dr.
Bodor noted in particular, however, that Petitioner’s upper extremity numbness and
weakness could be the product of separate issues. Id. Petitioner saw Dr. Bodor again on
February 3, 2022. Diagnosed with suspected SIRVA, partial thickness tear of rotator cuff
with tendinopathy and tendinosis, acromioclavicular arthropathy, glenohumeral joint
effusion, cervicalgia, and intermittent hand weakness and numbness. Id. at 5-6. On
February 4, 2022, Petitioner underwent aspiration tenotomy and bone debridement of his
left shoulder. Ex. 16 at 1.
Petitioner has submitted two affidavits in support of his claim. The first, dated
February 25, 2020 (Ex. 10), states that he had a previous shoulder injury attributed to a
motor vehicle accident in 1975 that caused recurring pain in his shoulder blade. Id. The
second, filed on June 11, 2021 (Ex. 12), detailed his previous shoulder pain in the 1970s,
and stated that it “has never fully subsided.” Id. However, Petitioner added that the
medical records “do not properly differentiate between [his] previous back and shoulder
blade pain versus [his] new left shoulder muscle injury.” Id.
III. Fact Findings and Ruling on Entitlement
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement, 3 a
petitioner must establish that he suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
he received. Section 11(c)(1)(C).
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In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for his injury. See § 11(c)(1)(A)(B)(D)(E).
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The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
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Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA.
1. Petitioner Had No Prior Left Shoulder Condition or Injury that
would Explain his Symptoms
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i).
There is evidence in this case of prior, shoulder-related concerns. Respondent
argues that Petitioner had a “longstanding history of left shoulder pain following a fall in
Vietnam and a motor vehicle accident in the 1970’s.” Opp. at 10. Petitioner himself has
reported shoulder pain since the 1970’s on a few occasions, significantly prior to the
vaccine. See, e.g., Ex. 11 at 3 (reporting left shoulder pain since a fall in Vietnam); Ex. 12
at 1.
However, it is also the case that Petitioner’s records consistently attribute his
shoulder pain to the flu vaccine. See, e.g., Ex. 3 at 24 (reporting “significant pain” since
his September flu vaccine); Ex. 4 at 24 (noting Petitioner’s injury was caused by a “flu []
shot on 9/17/18”); Ex. 14 at 120 (attributing Petitioner’s shoulder pain to a flu shot on
September 18, 2018). And Petitioner has told treaters that his preexisting shoulder
injuries were better, and that he had not been experiencing pain from it in the timeframe
close to when he received the vaccine at issue. Ex. 3 at 44. Further, there is no evidence
that he reported shoulder pain, or received treatment for shoulder problems, for decades
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prior to his 2018 flu vaccine. Thus, the evidence sufficiently preponderates in Petitioner’s
favor on this Table element to find it is satisfied.
2. Onset of Petitioner’s Injury Occurred within Forty-Eight Hours of
his Vaccination
The medical records also preponderantly establish onset of injury close-in-time to
vaccination. Petitioner first sought treatment approximately two months after his
vaccination. Ex. 2 at 497. Thereafter, in subsequent treatment records he consistently
linked his shoulder pain to the flu vaccine. See Ex. 2 at 488; Ex. 4 at 24; Ex. 14 at 120.
Accordingly, there is preponderant evidence that establishes the onset of Petitioner’s left
shoulder pain more likely than not occurred within 48-hours of vaccination.
3. Petitioner’s Pain was Limited to his Left Shoulder
Petitioner’s pain was limited to his left shoulder. Respondent does not contest this
aspect of Petitioner’s claim, and there is nothing in the records to suggest otherwise.
4. Evidence of Another Condition or Abnormality that would Explain
Petitioner’s Symptoms
The last criteria for a Table SIRVA state that there must be no other condition or
abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent argues that Petitioner’s shoulder pathology, or his cervical
spine pathology, could be causing his symptoms, citing several records from various
treaters. Opp. at 11.
As discussed above, Petitioner’s prior history includes reports of left shoulder pain
following a fall and car accident approximately 45 years prior to his flu vaccination. Ex. 11
at 3, Ex. 12 at 1. However, there is no evidence that Petitioner was receiving treatment
for shoulder pain in the previous decades before his vaccination. Accordingly, this prior
injury does not rise to the level of an explanatory “condition or abnormality.”
Evidence regarding Petitioner’s radiculopathy diagnosis presents a much closer
call. However, an EMG study from June 12, 2019 (when considered in connection with
Petitioner’s examination from September 18, 2018, noted no evidence of radiculopathy.
Ex. 6 at 22 (EMG study); Ex. 14 at 120 (examination on September 18, 2018). Petitioner’s
records ALSO show some signs of degenerative changes, including stenosis and
cervicalgia, which may have contributed to neck or shoulder pain. However, Petitioner
continually attributed his shoulder pain to the flu vaccine – it was his primary treatment
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complaint into the winter of 2019 – and he was affirmatively diagnosed with a SIRVA by
at least two medical professionals. Ex. 3 at 20, Ex. 15 at 9. Therefore, while there is record
evidence of comorbid conditions, or other possible explanations, it does not preponderate
over the conclusion that the shoulder pain was vaccine-related.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not dispute that Petitioner has satisfied these requirements in this case, and the overall
record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a Flu vaccine intramuscularly on
September 17, 2018, in the United States. Ex. 1 at 4; see Section 11(c)(1)(A) (requiring
receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the
United States or its territories). There is no evidence that Petitioner has collected a civil
award for his injury. Ex. 10 at 2; Section 11(c)(1)(E) (lack of prior civil award).
Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
Conclusion
In view of the record, I find preponderant evidence that Petitioner satisfies
the QAI requirements for a Table SIRVA, and that Petitioner is entitled to
compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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